- Commonwealth Court Rules on SECCRA Landfill Expansion Remand
- March 5, 2009 | Author: John R. Embick
- Law Firm: Thorp Reed & Armstrong, LLP - Philadelphia Office
Earlier this year, I wrote about this matter, which arose from a conditional use application for a landfill expansion filed in 2003 by Southeastern Chester County Refuse Authority (SECCRA). London Grove Township is the host municipality. In addition to the conditional use application, SECCRA also challenged the validity of the local zoning requirements (related to landfill setbacks and height) in an action before the Zoning Hearing Board (ZHB), and alternatively sought a variance.
In 2005, the Township denied the landfill conditional use application (after a hearing which spanned 17 months, in which substantial delays occurred between various hearing dates). In 2005, the ZHB also rejected the validity challenge to the zoning ordinance.
On appeal to Commonwealth Court, SECCRA raised a number of issues, including a claim that SECCRA was entitled to a deemed approval under the authority of Municipalities Planning Code (MPC) sections 908(1.2), and 913.2(b)(2), 53 P.S. 10908(1.2), and 10913(b)(2), because it had not expressly agreed to the extension of the hearing deadlines in section 908(1.2). The Township responded that SECCRA did not object on the record to the schedule extensions, and any rights under the MPC (related to the deemed approval process) therefore had been waived.
Commonwealth Court agreed (SECCRA v. Bd of Sup. of London Grove Twp., 916 A.2d 1237 (Pa. Cmwlth. 2007)), in essence, with the Township on the deemed approval contention, citing its decision in Wistuk v. Lower Mt. Bethel Township Zoning Hearing Board, 887 A.2d 343 (Pa. Cmwlth. 2005). SECCRA then appealed the matter to the Pennsylvania Supreme Court. In the meantime, the High Court had reversed the Wistuk decision ((925 A.2d 768 (Pa. 2007).)
The Supreme Court’s decision in Wistuk held that a landowner’s acquiescence to certain conduct of the ZHB did not constitute a waiver of the time requirements in the MPC (and thus the entitlement to the deemed approval provision).
In so holding, the Supreme Court in Wistuk indicated: “We do not discount that, in some circumstances, such an agreement reasonably may be discerned from written or on-the-record discussions that are not explicitly framed in terms of a formal agreement. However, in line with Judge Friedman’s rationale, we find no such extension or waiver presented on the record of this case.” (Judge Friedman dissented in the Commonwealth Court's Wistuk decision).
On the strength of the Wistuk holding, the Pennsylvania Supreme Court on December 17, 2007, remanded the SECCRA appeal to Commonwealth Court for proceedings consistent with Wistuk.
On the remand, Commonwealth Court, in an opinion by Judge Jubelirer (SECCRA v. Bd Sup. of London Grove Twp, No.1176 C.D. 2006), dated July 30, 2008, reviewed the record in an effort to determine whether an agreement to waive the MPC time requirements could be discerned.
Commonwealth Court first explored the meaning of “agreement” and used the definition of agreement appearing in Blacks Law Dictionary (8th Ed. 2004), highlighting such terms as “manifestation of mutual assent” and “by implication from other circumstances,” as follows:
1. A mutual understanding between two or more persons about their relative rights and duties regarding past or future performances; a manifestation of mutual assent by two or more persons. 2. The parties’ actual bargain as found in their language or by implication from other circumstances, including course of dealing, usage of trade and course of performance.
Slip Op. at 8.
Commonwealth Court concluded that this definition allowed conduct other than verbal statements to serve as evidence for agreement. This opens the door, of course, to characterization of possibly ambiguous or unintentional conduct as evidence of agreement, and seems a far cry from affirmative agreement either in writing or on the record, as discussed in Wistuk, above.
As evidence of agreement to waive the MPC time limits, Commonwealth Court then cited: (1) SECCRA’s active participation in many hearings as demonstrating an implicit, on-the-record agreement to continue with the hearing process, and as inconsistent with the right to stand on the right to a deemed approval; and (2) SECCRA’s concern that newly-elected supervisors would read transcripts of prior proceedings as evidence that SECCRA agreed that “there was a decision left to be made.” Slip Op. at 10.
Accordingly, parties should use caution in participating in various hearings and proceedings beyond the statutorily prescribed MPC limits, without clearly placing objections on the record.